HOWARD D. McKIBBEN, District Judge.
This is a habeas corpus action brought by Nevada prisoner Jamee Deidre Hundley, also known as James Derrick Hundley. The respondents have filed a motion to dismiss, on statute of limitations grounds. The Court will grant the motion to dismiss and will dismiss this action.
On January 8, 1996, The State charged Hundley with three counts of sexual assault involving nine-year-old CL, and one count of gross misdemeanor child abuse involving four-year-old ML. See Amended Criminal Complaint, Exhibit 4 (ECF No. 19-4). CL and ML, along with JL, were the children of Hundley's girlfriend, Jennifer Lockamy; when the crimes were committed, Hundley lived in Reno with Lockamy, CL, ML and JL.
After a preliminary hearing (see Transcripts of Preliminary Hearing, Exhibits 5 and 6 (ECF Nos. 19-5, 19-6)), the State amended the charges, replacing the gross misdemeanor child abuse charge with a charge of felony child abuse causing substantial bodily harm. See Second Amended Criminal Complaint, Exhibit 7 (ECF No. 19-7); Information, Exhibit 8 (ECF No. 19-8); Amended Information, Exhibit 26 (ECF No. 19-26); Second Amended Information, Exhibit 32 (ECF No. 19-32).
The case proceeded to trial in Nevada's Second Judicial District Court, in Washoe County, Nevada, in July 1996. See Transcripts of Trial, Exhibits 28, 29, 35 (ECF Nos. 19-28, 19-29, 20-1). The jury found Hundley guilty of all four charges. See Jury Verdicts, Exhibit 34 (ECF No. 20). Hundley was sentenced on August 30, 1996 (see Transcript of Sentencing, Exhibit 36 (ECF No. 20-2), as follows:
See Judgment, Exhibit 37 (ECF No. 20-3).
Hundley appealed from his conviction. See Notice of Appeal, Exhibit 38 (ECF No. 20-4). The Nevada Supreme Court affirmed Hundley's conviction and sentence on April 21, 1999. See Order Dismissing Appeal, Exhibit 43 (ECF No. 20-9).
Hundley then took no further action regarding the case for more than a decade.
On November 20, 2012, Hundley filed a petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Exhibit 67 (ECF No. 21). The state district court denied the petition on March 19, 2013, ruling that it was barred by the state-law statute of limitations. See Order Denying Petition for Habeas Corpus (Post-Conviction), Exhibit 68 (ECF No. 21-1). Hundley appealed, and the Nevada Supreme Court affirmed on September 19, 2013. See Order of Affirmance, Exhibit 76 (ECF No. 21-9).
Hundley filed a second state-court habeas petition on June 19, 2014. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 80 (ECF No. 21-13). Counsel was appointed, and Hundley filed a Supplemental Petition for Writ of Habeas Corpus. See Supplemental Petition for Writ of Habeas Corpus (Post Conviction), Exhibit 102 (ECF No. 22-2). The state district court dismissed that action as untimely and successive. See Order, Exhibit 111 (ECF No. 22-11). The Nevada Court of Appeals affirmed on December 29, 2015, ruling that Hundley's petition was procedurally barred. See Order of Affirmance, Exhibit 129 (ECF No. 22-29).
This Court received Hundley's pro se habeas petition (ECF No. 2), initiating this action, on November 8, 2016.
On November 16, 2016, the Court screened Hundley's petition, and determined that it appeared to be barred by the statute of limitations. See Order entered November 16, 2016 (ECF No. 8). The Court granted Hundley an opportunity to show cause why the case should not be dismissed on that ground. See id. On December 30, 2016, Hundley responded, asserting a claim of actual innocence to overcome the statute of limitations bar. See Motion to Show Cause (ECF No. 11). On January 24, 2017, the Court ruled that, under the circumstances, the Court would be able to consider Hundley's claim of actual innocence with a more complete record, and with the respondents' argument, and the Court ordered respondents to respond to the petition. See Order entered January 24, 2017 (ECF No. 13).
Respondents then filed their motion to dismiss (ECF No. 18) on June 8, 2017, asserting the statute of limitations. Hundley filed an opposition to the motion to dismiss on August 7, 2017 (ECF No. 24). Respondents filed a reply on September 28, 2017 (ECF No. 27).
The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, included a one-year statute of limitations for federal habeas petitions challenging state convictions or sentences:
28 U.S.C. 2244(d)(1). Respondents contend that Hundley's petition is barred by the statute of limitations.
Hundley's direct appeal concluded on April 21, 1999, when the Nevada Supreme Court affirmed Hundley's conviction and sentence. See Order Dismissing Appeal, Exhibit 43 (ECF No. 20-9). Adding the ninety days within which a petition for a writ of certiorari could have been filed in the United States Supreme Court (see Supreme Court Rule 13), the date on which Hundley's conviction became final, for purposes of the AEDPA statute of limitations, was July 20, 1999. Running from that date, without any tolling, the limitations period expired on July 20, 2000.
Hundley did not initiate a state-court habeas action until more than twelve years later, in 2012. After the passage of that time, both of his state-court habeas actions were ruled untimely. See Order of Affirmance, Exhibit 76 (ECF No. 21-9); Order of Affirmance, Exhibit 129 (ECF No. 22-29). An untimely state post-conviction petition is not considered "properly filed," and does not afford the petitioner statutory tolling of the AEDPA statute of limitations. See 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). Therefore, the AEDPA limitations period continued to run.
Hundley signed his federal habeas petition on October 26, 2016, and mailed it for filing. More than 16 years had passed, after Hundley's conviction became final, before Hundley initiated this action.
A habeas corpus petitioner is entitled to equitable tolling of the AEDPA statute of limitations if the petitioner shows: "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418). Hundley does not make any argument for equitable tolling.
A federal habeas petitioner may also overcome the expiration of the AEDPA statute of limitations by making a showing of actual innocence. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928-35 (2013); see also Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011). When an otherwise time-barred habeas petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error," the court may consider the petition on the merits. See Schlup v. Delo, 513 U.S. 298, 316 (1995). Under Schlup, a petitioner may overcome a procedural default or expiration of the statute of limitations by (1) producing "new reliable evidence [of innocence] — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," Schlup, 513 U.S. at 324, and (2) showing "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. The Schlup standard permits review only in the "extraordinary" case. Id. at 324. The Supreme Court has cautioned that "tenable actual-innocence gateway pleas are rare." McQuiggin, 133 S.Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (citing Schlup, 513 U.S. at 329); see also House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup standard is demanding and seldom met).
Hundley's sole response to the respondents' assertion of the statute of limitations defense is a claim of actual innocence. And, Hundley's claim of actual innocence is based entirely on a statement made by Jennifer Lockamy, the victims' mother, at Hundley's sentencing. See Opposition to Motion to Dismiss (ECF No. 24). Hundley claims that, at the sentencing, Lockamy testified that CL, JL and ML had recanted their testimony. See id.
CL testified at Hundley's trial. See Testimony of CL, Trial Transcript, July 23, 1996, Exhibit 28, pp. 163-89 (ECF No. 19-28). CL was nine years old in December 1995, when Hundley was arrested. See id. at 164. CL testified as follows:
Id. at 171-79. CL also testified about an occasion when Hundley exposed his penis to CL and JL. Id. at 180. CL also testified, as follows, that Derrick showered with her:
Id. at 181-82. CL also testified that ML's arm was broken because Hundley "threw him across the room." Id. at 167-68. And, CL testified that ML had bite marks on his arm because Hundley bit him, and that ML had marks on his buttocks from Hundley "spanking him with a belt." Id. at 169. Finally, CL testified as follows:
Id. at 182-83.
ML also testified at Hundley's trial. See Testimony of ML, Trial Transcript, July 23, 1996, Exhibit 28, pp. 102-22 (ECF No. 19-28). ML was four years old in December 1995. See id. at 104-05. When asked about Hundley, ML testified: "sometimes he whooped me." Id. at 108. When shown photographs of injuries that he had in December 1995, ML testified that Hundley did that to him. Id. at 109. Asked the broken arm that he had in December 1995, ML testified: "I broke this one (indicating) because Derrick [Hundley] thrown me on the bed, and I rolled and it broke." Id. at 111; see also id. at 112 ("When he throwed me on the bed, I had — I rolled and then — then I hit my arm, and then I broke it."). Asked about marks on his buttocks, ML testified that Hundley had "whooped" him with a belt. Id. at 113; see also id. at 116 ("He whooped me with a belt buckle."). ML also testified that Hundley gave him "potty baths." Id. at 115-16. Asked how he felt about Hundley, ML testified "I hate him." Id. at 117.
JL also testified at Hundley's trial. See Testimony of JL, Trial Transcript, July 23, 1996, Exhibit 28, pp. 124-63 (ECF No. 19-28). JL was eight years old in December 1995. See id. at 124-25. JL testified that on one occasion she and CL were in Hundley's bedroom and Hundley pulled down his pants and exposed "his private parts" to them. See id. at 130-34. JL testified that Hundley took a shower with CL. Id. at 135-38, 154-55. JL testified that ML's arm was broken when Hundley threw him on a bed and he hit his arm on a wall. Id. at 135-36, 145-46. JL testified that the bite marks on ML's arm were from Hundley biting him. Id. at 138, 153-54. JL testified that Hundley would "always" hit ML with a belt. Id. at 139. Asked about the "potty baths" that Hundley gave to ML, JL testified as follows:
Id. at 141-42. On cross-examination, when asked if she told her mother what happened, JL testified as follows:
Id. at 161-62.
Carla Blevins, a social worker employed at a Reno hospital, testified that on December 23, 1995, when she was working in the emergency room of the hospital, Hundley and Jennifer Lockamy brought ML into the hospital with an arm injury, and he was found to have a broken arm. See Testimony of Carla Blevins, Trial Transcript, July 23, 1996, Exhibit 28, pp. 13-38 (ECF No. 19-28). Blevins testified that, in addition to the broken arm, she saw bite marks on ML's left arm, bruises on his face, behind his ear, and near his armpit, redness in an eye, and "bruising stripe marks" on his buttocks and upper legs. Id. at 19-20. Lockamy denied knowing how those injuries had occurred. Id. at 23-25. Regarding the "bruising stripe marks," Blevins testified that Hundley told her: "Well, I give them whoopins." Id. at 26. Blevins also observed light bruising on CL similar to the bruising on ML's buttocks. Id. at 27. CL told Blevins that Hundley had caused the bruises; she said Hundley "whoops them with a belt." Id. at 30.
Donald Clark Cole, M.D., an emergency room doctor at the hospital, also testified at Hundley's trial. See Testimony of Donald Clark Cole, M.D., Trial Transcript, July 24, 1996, Exhibit 29, pp. 3-27 (ECF No. 19-29). Dr. Cole observed that ML had several injuries, including the broken arm, bite marks on one arm, "striping bruising" on his buttocks, hemorrhaging in an eye, bruising on the side of his tongue, a bruise on the left side of his face, and a scratch behind his left ear. Id. at 5-16. Dr. Cole suspected that ML had been subjected to child abuse. Id. at 16-17.
Larry Lipparelli, a social worker employed by the Washoe County Department of Social Services, also testified at trial. See Testimony of Larry Lipparelli, Trial Transcript, July 23, 1996, Exhibit 28, pp. 38-62 (ECF No. 19-28). Lipparelli testified that he interviewed ML, CL and JL on December 26, 1995. See id. at 40. On ML, Lipparelli observed "some hemorrhaging in his right eye," "some type of cast on his right arm," "a scrape behind his right ear," "a scrape on his face," "two bite marks on his arm," and "some bruising on his buttocks and leg and a bruise at the upper base of his penis." Id. at 41. Lipparelli testified as follows about what the three children told him:
Id. at 54-55. Asked about Jennifer Lockamy, Lipparelli stated: "She seemed to be more concerned about the defendant than her own children." Id. at 57.
Keith Primus, who was a Reno police detective, testified at Hundley's trial. See Testimony of Keith Primus, Trial Transcript, July 23, 1996, Exhibit 28, pp. 75-101 (ECF No. 19-28). Primus testified that he responded to the hospital emergency room where ML was on December 23, 1995. See id. at 77. Primus observed ML's injuries. Id. at 78. Primus then spoke with Hundley, who agreed to go to the police station to be interviewed. Id. at 78-79. A videotape of Primus' interview of Hundley was played before the jury. Id. at 81-82.
Kathleen Marie Peele, a registered nurse at WCC Saint, a medical clinic that did medical evaluations of children who may have been victims of sexual assault, testified that she examined CL on December 28, 1995. See Testimony of Kathleen Marie Peele, Trial Transcript, July 24, 1996, Exhibit 29, pp. 27-59 (ECF No. 19-29). CL told Peele that Hundley "had put his private thing and some other object inside of her." Id. at 32. CL told Peele she was "having abdominal or pelvic pain," as well as "dysuria, which is painful urination." Id. at 34. Peele believed that CL told her she was having vulvar discomfort and itching. Id. CL told Peele she felt anger toward Hundley. Id. at 35. CL told Peele that she was having problems with depression and self-abuse. Id. at 35-36. Peele found, as follows, that CL's hymen was abnormal:
Id. at 40. Asked what this finding meant to her as a sexual assault examiner, Peele testified:
Id. Peele testified that this would be consistent with a penis entering the vagina. Id. at 41. Asked further about the meaning of her findings, on cross-examination, Peele stated:
Id. at 59.
Jennifer Lockamy, the mother of CL, JL and ML, testified for the defense. See Testimony of Jennifer Lockamy, Trial Transcript, July 24, 1996, Exhibit 29, pp. 84-159 (ECF No. 19-29). Lockamy testified that, after Hundley's arrest, and soon after CL was examined by Peele, she was allowed to visit with CL, JL and ML, with Lipparelli present. See id. at 102-03. Lockamy admitted that, during that visit, CL told her that Hundley had "touched her" and that she "had vaginal tissue damage." Id. at 103. Lockamy also admitted that CL answered "yeah" when Lipparelli asked her if "[Hundley] made [her] kiss his penis," if "[Hundley] kissed [her] vagina," and if "[Hundley] put his penis in [her] vagina." Id. Lockamy claimed that CL said she wanted to talk to her alone, but Lipparelli would not allow that. Id. Lockamy also claimed that she saw CL and JL bite ML. See id. at 106-07. Lockamy also claimed that CL and JL had told her a story different from their testimony regarding the incident when Hundley exposed himself to them; according to Lockamy, CL and JL told her that they had walked in on Hundley, in his bedroom, and Hundley was not wearing pants. See id. at 107-08. Lockamy testified, further, that, during the time her children lived with Hundley and her, she never saw any signs of physical abuse on the children. See id. at 108. Lockamy testified that when she found out about the bruises on ML's buttocks, she "was under the assumption that they happened when he fell down the stairs" on the evening of December 22, 1995. See id. at 115-17. She also testified that she thought ML broke his arm falling down the stairs. See id. at 116-19, 126. Lockamy testified that she loved Hundley and visited Hundley many times in jail between the time of the arrest and the trial; she did not dispute records that showed that she visited Hundley 64 times. See id. at 120, 122, 128-29. Lockamy testified that ML "had a habit of when he was bored he would be watching TV and pulling on his ear and he would get bruises behind his ear." Id. at 139. Lockamy testified that ML "was uncircumcized and we were having a problem with him keeping his penis clean and it would get to itching and he would pull on his penis and he would have bruises here." Id. Lockamy testified that she disputed Dr. Cole's suspicion that ML had been subject to abuse, and she disputed that it was Hundley who caused CL's abnormal hymen. See id. at 144-46.
Hundley's mother also testified for the defense. See Testimony of Judy Hundley, Trial Transcript, July 24, 1996, Exhibit 29, pp. 159-69 (ECF No. 19-29). She testified that she often cared for the three children, and became close to them. See id. at 162-63. She testified that they played roughly; she testified that she saw ML hurt his eye, and she saw the two girls bite ML. Id. at 165-66. She testified that she never noticed any reluctance of the children to be with Hundley, and that, in fact, they "couldn't get enough of [Hundley]." Id. at 166-68.
Amy Harold also testified for the defense; she lived across the hallway from Lockamy and Hundley and the three children, and sometimes babysat the children. See Testimony of Amy Arlene Harold, Trial Transcript, July 25, 1996, Exhibit 35, pp. 11-21 (ECF No. 20-1). Harold testified that on one occasion, around Christmas 1995, her son bit ML, possibly on the shoulder. See id. at 13. However, on cross-examination, she testified that her son did not cause the bite marks that were discovered on ML at the hospital on December 23, 1995, or any of the other injuries to ML that were discovered then. Id. at 16-17. Harold testified that she believed CL, JL and ML were being treated very well at home, that they were happy, and that the children did not complain about Hundley or Lockamy mistreating them in any way. Id. at 14.
Hundley testified. See Testimony of James Derrick Hundley, Trial Transcript, July 25, 1996, Exhibit 35, pp. 22-114 (ECF No. 20-1). Hundley testified that he spanked ML on December 23, 1995. See id. at 28-30; see also id. at 85-88. Hundley testified that on December 23, 1995, he and the children were playing roughly, and he threw ML on a bed, and then ML complained about his arm hurting. Id. at 30-32; see also id. at 79-82. Hundley testified that he then took the children to pick Lockamy up from work, and to take ML to the hospital. Id. at 32-33. Hundley testified about going to the police station and being interviewed there. Id. at 33-37. While testifying, Hundley attempted to explain away his admission to the police — seen by the jury on the video of the interview — that he had bitten ML. Id. at 37; see also id. at 82-85. Hundley testified about the incident where CL and JL saw his penis, suggesting that, if that happened, they must have walked in on him without knocking. Id. at 43-44; 89-92. Hundley denied taking a shower with CL. Id. at 44-46. Hundley denied ever sexually molesting CL. Id. at 113.
The State re-called Lipparelli in its rebuttal case. See Testimony of Larry Lipparelli, Trial Transcript, July 25, 1996, Exhibit 35, pp. 120-25 (ECF No. 20-1). In that testimony, Lipparelli testified that Jennifer Lockamy told him that ML may have hurt himself falling down stairs, but he found no evidence to corroborate her belief in that regard. See id. at 120-21. Lipparelli also testified regarding his meeting with Lockamy and CL. See id. at 121-23. He testified that he encouraged CL to tell her mother what she had told him, but that he did not tell her what to say. Id. at 122-23.
Hundley claims that Jennifer Lockamy's testimony at his sentencing was such that, had the jury heard the testimony at trial, no juror, acting reasonably, would have found him guilty. At Hundley's sentencing, Lockamy testified as follows:
Transcript of Sentencing, Exhibit 36, pp. 5-7 (ECF No. 20-2). Hundley focuses especially on Lockamy's last statement — that CL, JL and ML "pretty much have told me the same thing" — characterizing this as a recantation of their testimony. See Opposition to Motion to Dismiss (ECF No. 24).
The Court finds that the testimony of Jennifer Lockamy at Hundley's sentencing — hearsay testimony by a witness who had plainly sided with the defense — falls substantially below the standard necessary to show actual innocence to overcome the statute of limitations bar of this action. The Court concludes that had the jury heard Lockamy's testimony that CL, JL and ML "pretty much" told her that Hundley "didn't do this", the jurors, acting reasonably, would not have reached a different result. The jury heard directly from CL, JL and ML — they heard the children's believable, and well-corroborated first-person accounts of Hundley's abuse of them.
Furthermore, under McQuiggin, while Hundley's delay may not bar Hundley's claim of actual innocence to overcome the limitations bar, the timing of Hundley's petition is a factor bearing on the reliability of the evidence purporting to show actual innocence. See McQuiggin, 133 S.Ct. at 1928; see also McQuiggin, 133 S.Ct. at 1935 ("Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing."). Hundley's sentencing was on August 30, 1996. See Transcript of Sentencing, Exhibit 36 (ECF No. 20-2). Hundley waited more than twenty years after the sentencing — more than seventeen years after Hundley's conviction became final — before initiating a federal habeas corpus action and claiming, based on Jennifer Lockamy's testimony, actual innocence. In that time, Hundley has been unable to produce any evidence of the supposed recantation of the testimony of CL, JL and ML other than Lockamy's vague hearsay testimony at the sentencing.
The Court considers Hundley's delay in claiming actual innocence based on Lockamy's testimony as unreliable and Hundley has not made a showing, as required under Schlup and McQuiggin, of actual innocence, to overcome the statute of limitations bar. The Court finds that Hundley's petition is barred by the statute of limitations.
The standard for issuance of a certificate of appealability is governed by 28 U.S.C. § 2253(c). The Supreme Court has interpreted section 2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir.2000). Applying this standard, the Court finds that a certificate of appealability is not warranted.
